Dated 02.02.2024

As per Sanjay Kumar, President.

O r d e r

1. Present appeal has been filed by appellant/opposite party/New India Assurance Co. Ltd. for setting aside the order dated 23.07.2010 passed by Ld. District Consumer Forum, Hajipur in complaint case no. 09 of 2009 whereby and whereunder the appellants have been directed to pay Rs. 98,271/- to the complainant as cost of repair of insured vehicle which was damaged in accident.
2. Briefly stated the facts of the case is that vehicle of complainant was insured by opposite party/insurance company which got damaged on 31.05.2006 in a road accident during insurance period for which complainant lodged an FIR being Muzaffarpur, Sadar PS case no. 127 of 2006 U/s 279 and 427 of I.P.C and also intimated insurance company on 01.06.2006.
3. Police investigated the case and requested the motor vehicle inspector Muzaffarpur by letter dated 03.06.2006 to inspect the vehicle. Complainant thereafter toed away his damaged vehicle on 07.06.2006 by help of crane to workshop at Patna for repair and spend Rs. 98,271/- in its repair which included cost of repair as well as cost of spare parts which he purchased from Sonali Auto.
4. Complainant submitted his claim on 19.09.2006 for payment of cost of repair of vehicle to the office of insurance company at Patna along with original bills and cash memo upon which insurance company demanded some documents by letter dated 16.02.2007 which was submitted by complainant, however claim of complainant was not settled and complainant thereafter filed consumer complaint case in District Consumer Forum, Hajipur, Vaishali, upon which notices were issued to opposite parties for their appearance.
5. Opposite party in their written statement stated that present complaint was not maintainable as vehicle was used for commercial purpose. After receiving information a surveyor was appointed to assess the damage and final surveyor report was submitted in which loss was assessed as Rs. 32,238/- a copy of which was enclosed. Claimant was asked  by registered letter dated 16.02.2007 and 11.04.2007 to submit required paper including original cash memo, Bill of spare parts purchased by him but complainant did not submit the original cash memo or bill and due to non-submission of which claim was closed as no claim by letter dated 18.05.2007.
6. The District Consumer Forum after hearing the parties and considering the materials available on record treated the photo copies of three invoices and crane bill as genuine and accordingly directed insurance company to pay sum of Rs. 98,271/- to the complainant within 30 days, aggrieved by which present appeal has been filed by insurance company before the State Commission.
7. Heard counsel for the parties and considered their submission. Perused the impugned order and written arguments filed by parties as well as materials available on record.
8. Complainant has neither challenged the letter dated 18.05.2007 issued by insurance company by which claim of complainant was closed as no claim nor has disputed the final surveyor report in which total loss has been assessed as Rs. 32,238/-. It is equally surprising that the District Consumer Forum has also not taken any note of final surveyor report although it is the most relevant piece of evidence to settle the claim.
9. Assessment of loss by an approved surveyor is a prerequisite and foundation for settlement of the claim. There is no allegation of any in adequacy in the quality, nature and manner of performance of the duties and responsibilities of the surveyor. The surveyor report has not been disputed or challenged by complainant as such complainant is entitle for the loss as assessed by surveyor.
10. Although complainant has not challenged the letter dated 18.05.2007 by which claim has been closed as NO CLAIM as complainant failed to submit documents as demanded by insurance company. However, in case of Karnavati Veneers Pvt. Ltd. Vs. New India Assurance Company Limited 2023 SCC (4) 247 Apex Court has held that loss assessed by surveyor is to be paid and on ground of non-submission of document claim cannot be denied paragraph 15, 16 & 17 of which reads as follows:

15.  It is also not disputed that M/s. A.M. Patel Surveyors Pvt. Ltd. which was appointed as a surveyor by the respondent Company has extensively examined the site physically and after taking into consideration the relevant record made available by the appellant (insured), estimated the loss/damage which took place due to fire on 20th October, 2006 of Rs. 21,76,524/­ and the respondent has repudiated the claim of the appellant not on the premise that the Surveyor’s report dated 1st July, 2007 is not acceptable to the respondent Company but on account of non­submission of the required documents ­ which was a breach of clause 6(b) of the policy as indicated by the Company in its repudiation letter dated 11th September, 2007.

16. In our considered view, invoking condition no. 6(b) of the policy for repudiation dated 11th September, 2007 was unsustainable in law for the reason that clause 6(b) only desires to submit necessary document for the purpose of assessment of claim regarding the loss/damages caused due to the fire which took place. Whatever the material documents available with the insured were indisputedly made available to the Surveyor who has made its own physical inspection in reference to the loss which took place due to fire on 20th October, 2006 and submitted its report on 1 st June, 2007. Once that assessment has been made regarding the loss/damage which took place due to fire dated 20 th October, 2006 and that was not disputed by the respondent Company, repudiating the claim invoking clause 6(b) of the policy, in our considered view, was unfair and is not legally sustainable.

17. Consequently, the appeal deserves to succeed and is accordingly allowed. The order passed by the National Commission dated 3rd September, 2012 is set aside. The respondent Company is directed to make the payment of Rs, 21,76,524/­ as assessed by the Surveyor along with interest @ 8% per annum from the date of the Surveyor’s report dated 1st June, 2007 to the appellant until its actual payment.

16. For the reasons as stated above appeal is partly allowed and impugned judgment is modified to the extent that insurance company shall pay a sum of Rs. 32,238/- to the complainant with interest @6% per annum from the date of filing of complaint case till its payment.
17. Appeal is partly allowed to the extent as indicated above.
18. A copy of this order be supplied to both the parties free of cost as mandated by the Consumer Protection Act. Office is directed to send a copy of this order to the District Consumer Commission, Vaishali at Hajipur by E-mail forthwith and order to be uploaded on the website of the Commission.
19.    Let the file be consigned in the record room along with copy of this order.

(Ram Prawesh Das)                                           (Md. Shamim Akhtar)                                                                (Sanjay Kumar,J)

       Member                                                             Member                                                                                    President

Md. Fariduzzama